Hamdan’s second challenge fails

Posted Sat, June 25th, 2011 2:44 pm by Lyle Denniston

Salim Ahmed Hamdan, a Yemeni national who won a high-profile Supreme Court challenge to a war crimes tribunal set up by presidential order, has failed in an attempt to undo a replacement tribunal created by Congress. On Friday night, a military appeals court — the U.S. Court of Military Commission Review — upheld the new trial system at Guantanamo Bay, and found no flaw in Hamdan’s guilty verdict.

The 86-page unanimous ruling (found here) can be reviewed next in civilian courts — first, the D.C. Circuit Court and then, if the Justices accept it, the Supreme Court. After being sentenced to six-and-a-half years in military prison, Hamdan was sent home to Yemen, and was later released there. His case was taken to the military appeals court by his U.S. lawyers.

The decision marked the first time that the military court had reviewed a conviction at Guantanamo under the “military commission” system that Congress enacted in 2006. That commission system replaced one, set up by President George W. Bush, by executive order. In 2006, the Supreme Court found that tribunal unconstitutional in a major ruling (Hamdan v. Rumsfeld) that appeared to limit presidential authority in the so-called “war on terrorism.” Congress responded quickly with the new system. Hamdan was the first to have a full-scale trial in a system that has been plagued with repeated difficulties.

The commission system at Guantanamo is the one the Obama Administration has chosen for trials of terrorism suspects held at the U.S. Navy prison on the island of Cuba, now that Congress has blocked trials in civilian courts in the U.S. of any of those prisoners — including the alleged plotters of the Sept. 11, 2001, terrorist attacks

A key facet of the new decision is the narrow interpretation the seven-judge appeals court gave to the Supreme Court’s 2008 decision in Boumediene v. Bush, creating a constitutional right for Guantanamo detainees to challenge their continued confinement in U.S. civilian courts. The Boumediene ruling, it concluded, only established that right of access to the courts.

Thus, the appeals court found that the Supreme Court had not created any guarantee of equal treatment of non-citizens and citizens. The Guantanamo commissions were given authority to try only non-citizens, and Hamdan’s lawyers contended that that violated the guarantee of legal equality that the Fifth Amendment’s due process clause provides.

Hamdan, whom military prosecutors said had been a personal driver for the late al Qaeda leader, Osama bin Laden, in Afghanistan, was also accused of providng military-type support to al Qaeda forces, and was said to have been a sympathizer for the terrorist actions that al Qaeda carried out.

Hamdan was found guilty of providing “material support for terrorism.” first to aid al Qaeda as it carried out terrorist acts, and second to al Qaeda as a group labeled by U.S. authorities as an “internatonal terrorist organization.” After being sentenced to 66 months in military prison, he was given credit for 61 months because of his captivity up to the verdict, and was sent home to serve the remainder of the sentence.

In the appeal, Hamdan’s attorneys raised three issues: first, they argued that the military commissions set up by Congress did not have the authority to try the crime of providing material support for terrorism, because that crime was not a violation of international law; second, they contended that his conviction was the result of an ex post facto prosecution because his alleged crimes occurred before the commission was created, and, third, they asserted that his rights to legal equality were violated because the commission system targeted only aliens, in an attempt to punish them exclusively.

The military appeals court rejected all three of the challenges, concluding that the material support charge was a valid one under international law, that the crime had pre-existed the creation of the commission trial system, and that he had no constitutional guarantee of legal equality under the Fifth Amendment.

In discussing his equal protection claim, the appeals court said that Congress had not discriminated against aliens in making only non-citizens subject to trial by commission. Using wartime powers, the court ruled, the President and Congress have broad authority to draw distinctions between aliens and citizens in efforts to protect the nation’s security.

The appeals court also rejected the Hamdan claim that the Boumediene decision guaranteed to him all of the constitutional rights of due process and legal equality that are available in the regular federal courts. That, it said, is too broad a reading of a decision that actually only established a constitutional right to pursue a habeas challenge to confinement.

In turning aside that challenge, the appeals court relied in part upon the narrow reading of the Boumediene decision that the D.C. Circuit Court had made in its decision last year in Al-Bihani v. Obama. The Circuit Corut said that aliens held by the military have fewer rights than citizens or aliens living legally in the U.S. (The Supreme Court refused to review that decision in April [docket 10-7814] with Justice Elena Kagan not taking part.)

After denying the equal protection claim, the military appeals court said it was not ruling on any other due process rights, although noting that the Boumediene decision had created the habeas right as a due process guarantee.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

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Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.